Native Americans: 22 Books on History, Mythology, Culture & Linguistic Studies. James Mooney

act of the Georgia legislature of December 20, 1828, already alluded to, was an act "to add the territory within this State and occupied by the Cherokee Indians to the counties of De Kalb et al., and to extend the laws of this State over the same." This was followed360 by the passage of an act reasserting the territorial jurisdiction of Georgia and annulling all laws made by the Cherokee Indians. It further declared that in any controversy arising between white persons and Indians the latter should be disqualified as witnesses. Supplementary legislation of a similar character followed in quick succession, and the proclamation of the governor of the State was issued on the 3d of June, 1830, declaring the arrival of the date fixed by the aforesaid acts and the consequent subjection of the Cherokee territory to the State laws and jurisdiction.361

The President of the United States about the same time gave directions362 to suspend the enrollment and removal of Cherokees to the west in small parties, accompanied by the remark that if they (the Cherokees) thought it for their interest to remain, they must take the consequences, but that the Executive of the United States had no power to interfere with the exercise of the sovereignty of any State over and upon all within its limits. The President also directed363 that the previous practice of paying their annuities to the treasurer of the Cherokee Nation should be discontinued, and that they be thereafter distributed among the individual members of the tribe. Orders were shortly after364 given to the commandant of troops in the Cherokee country to prevent all persons, including members of the tribe, from opening up or working any mineral deposits within their limits. All these additional annoyances and restrictions placed upon the free exercise of their supposed rights, so far from securing compliance with the wishes of the Government, had a tendency to harden the Cherokee heart.

      Failure of Colonel Lowry's Mission

       Table of Contents

In this situation of affairs Col. John Lowry was appointed365 a special commissioner to visit the Cherokee Nation and again lay before them a formal proposition for their removal west. The substance of Mr. Lowry's proposal as communicated by him to their national council366 was: (1) To give to the Cherokees a country west of the Mississippi, equal in value to the country they would leave; (2) each warrior and widow living within the limits of Alabama or Tennessee was to be permitted, if so desiring, to select a reservation of 200 acres, which, if subsequently abandoned, was to be sold for the reservee's benefit; (3) each Indian desiring to become a citizen of the United States was to have a reservation in fee-simple; (4) all emigrants were to be removed and fed one year at the expense of the United States, and to be compensated for all property, except horses, they should leave behind them, and, (5) the nation was to be provided with a liberal school fund.

Again the result was an emphatic refusal367 on the part of the Cherokees to enter into negotiations on the subject. Other special commissioners and emissaries, of whom several were appointed in the next few months, met with the same reception.

      Decision of the Supreme Court in Cherokee Nation vs. Georgia

       Table of Contents

Determined to test the constitutionality of the hostile legislation of Georgia, application was made at the January term, 1831, of the Supreme Court of the United States, by John Ross, as principal chief, in the name of the Cherokee Nation, for an injunction against the State of Georgia. The application was based on the theory that the Cherokee Nation was a sovereign and independent power in the sense of the language of the second section of the third article of the Constitution of the United States providing for judicial jurisdiction of cases arising between a State, or the citizens thereof, and foreign states, citizens, or subjects. The majority of the court declared that the Cherokee Nation was not a foreign nation in the sense stated in the Constitution, and dismissed the suit for want of jurisdiction. From this decision, however, Justices Thompson and Story dissented.368

      Failure of Mr. Chester's Mission

       Table of Contents

No further formal attempt was made to secure a compliance with the wishes of the Government until the winter and spring of 1831—'32. A delegation of Cherokees had visited Washington in the interests of their people, and though nothing was accomplished through them, the language used by some members of the delegation had led the Government authorities to hope that a change of sentiment on the subject of removal was rapidly taking place in their minds. In pursuance of this impression the Secretary of War, in the spring of 1832,369 intrusted Mr. E. W. Chester with a mission to the Cherokees, and with instructions to offer them as a basis for the negotiation of a treaty the following terms:

      1. The United States to provide them with a country west of Arkansas sufficiently large for their accommodation.

      2. This country to be conveyed to them by patent under the act of Congress of May 28, 1830, and to be forever outside the limits of any State or Territory.

      3. The Cherokees to retain and possess all the powers of self-government consistent with a supervisory authority of Congress.

      4. To have an agent resident in Washington to represent their interest, who should be paid by the United States.

      5. With the consent of Congress they should be organized as a Territory and be represented by a delegate in that body.

      6. All white persons should be excluded from their country.

      7. The United States to remove them to their new country and to pay the expenses of such removal, which might be conducted in either of three ways, viz:

      (a) By a commutation in money, to be allowed either individuals or families.

      (b) By persons to be appointed and paid by the United States.

      (c) By arrangement among themselves, through which some competent person should remove them at a fixed rate.

      8. The United States to provide them with subsistence for one year after removal.

      9. An annuity to be secured to them proportioned to the value of the cession of territory they should make.

      10. The United States to pay for all Indian improvements upon the ceded land.

      11. Provision to be made for the support of schools, teachers, blacksmiths and their supplies, mills, school-houses, churches, council-houses, and houses for the principal chiefs.

      12. A rifle to be presented to each adult male, and blankets, axes, plows, hoes, spinning-wheels, cards, and looms to each family.

      13. Indian live stock to be valued and paid for by the United States.

      14. Annuities under former treaties to be paid to them upon their arrival west of the Mississippi.

      15. Provision to be made by the United States for Cherokee orphan children.

      16. Protection to be guaranteed to the Cherokees against hostile Indians.

      17.